govinfo:USCOURTS-njd-3_88-cr-00239-7

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF NEW JERSEY 
    
UNITED STATES OF AMERICA, 
 
                                    
 
v. 
 
 
RICHARD DESCISCIO                
                   
                                    
 
 
 
Crim. Action No.: 3:88-cr-00239-PGS 
 
MEMORANDUM AND ORDER  
 
 
 
 
Richard DeSciscio (“Defendant” or “ DeSciscio”) brings this pro se Motion 
for a Sentence Reduction under the First Step Act, 18 U.S.C. § 3582(c)(1)(A) , 
submitting that extraordinary and compelling reasons justify a reduction in sentence.  
(ECF No. 56).   DeSciscio has submitted four previous motions for relief which have 
all been denied.  (ECF Nos. 14, 28, 30, 50).   
The Government opposes the current motion stating both that DeSciscio has 
not exhausted his administrative remedies and that extraordinary and compelling 
reasons do not exist in the case before the Court.  (ECF No. 61).  For the reasons 
stated below, the Court agrees with the Government.  Defendant’s motion (ECF No. 
56) is DENIED.  
 
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I.  
The extensive factual background and history of Defendant are summarized 
in the July 10, 2020 Order denying DeSciscio’s First Motion for Compassionate 
Release.  (ECF No. 14).   For sake of clarity, the Court briefly summarizes the 
procedural history below.   
On or about June 26, 1989, Defendant was convicted by jury on all twenty-
six counts of the Indictment, including but not limited to: violations of 18 U.S.C. § 
1952 (Racketeer Influenced and Corrupt Organizations Act (“RICO”) conspiracy to 
murder John Gotti, Gene Gotti, and Irwin Schiff and participation in the murder of 
Irwin Schiff); violations o f 18 U.S.C. § 1955 (conducting an illegal gambling 
business); violations of 18 U.S.C. § 1962 (racketeering); and violations of 18 U.S.C. 
§§ 891 and 892 (loansharking).  (ECF No. 5-1 at 3; ECF No. 9 at 2).  On September 
26, 1989, the Hon. Marianne Trump Barry sentenced Defendant to a term of seventy-
five year’s imprisonment for his crimes.   (See Judgment of Co nviction at 1 
(hereinafter “Judgment”)). 
On November 21, 1990, the Court of Appeals for the Third Circuit affirmed 
DeSciscio’s conviction.  (Id.).  Subsequent motions under 28 U.S.C. § 2244 for leave 
to file a second or successive § 2255 petition to vacate his sentence were denied. 
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(Id.).   Prior to this motion, DeSciscio’s previous motions for compassionate release 
and habeas relief were denied. (ECF Nos. 14, 28, 30, 50). 
II.  
Once a federally imposed sentence commences, a district court has limited 
authority to modify that sentence.  Dillon v. United States, 560 U.S. 817, 825 (2010). 
The First Step Act  (18 U.S.C. § 3582(c)(1)(A) ) allows a criminal defend ant to 
request a reduction in sentence, also known as “compassionate release,” for 
“extraordinary and compelling reasons” after exhausting administrative remedies. 
18 U.S.C. § 3582(c)(1)(A); see United States v. Alexander, No. CV 19-32, 2020 WL 
2507778, at *5 (D.N.J. May 15, 2020).  Before a defendant can bring a motion for 
reduced sentence on their own behalf directly with the district court, a defendant 
“must ask the Bureau of Prisons ( ‘BOP’) to do so on their behalf, give BOP thirty 
days to respond, and exhaust any available administrative appeals.”   United States 
v. Raia, 954 F.3d 594, 595 (3d Cir. 2020) (citing § 3582(c)(1)(A)); United States v. 
Johnson, 2022 WL 1402048, at *1 (3d Cir. May 4,  2022) (quoting 18 U.S.C. § 
3582(c)(1)(A)). 
A defendant seeking a reduction in his sentence under the First Step Act 
“bears the burden” of proving that he has exhausted administrative remedies before 
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seeking judicial review.  United States v. Sellers , No. CR 10 -434, 2020 WL 
1972862, at *1 (D.N.J. Apr. 24, 2020) (citing 18 U.S.C. § 3582(c)(1)(A)). 
After this, and if a motion is timely filed by the defendant, then a court may 
reduce an inmate’s sentence if (1) it finds that there are “extraordinary and 
compelling reasons” that warrant a reduction; (2) the reduction would be “consistent 
with applicable policy statements issued by the Sentencing Commission” as well as 
the Court’s independent assessment; and (3) it considers the sentencing factors set 
forth in § 3553(a), as applicable. United States v. Brown , No. 07 -19, 2020 WL 
2466081, at *2 (D.N.J. May 13, 2020) (citation omitted). 
III.  
In the instant motion, Defendant asserts three separate grounds for relief.   
First, DeSciscio argues that his “case should have been sentenced under the old law 
which allowed d efendants to go to the Parole Board,” and his being erroneously 
sentenced under the new law without the possibility of parole constitutes an 
extraordinary and compelling reason for a reduction in his sentence.   Second, 
DeSciscio argues that the Third Circu it’s decision in United States v. Harris , 68 
F.4th 140 (3d Cir. 2023 ) is relevant to his RICO convictions and presents an 
extraordinary and compelling circumstance.  Third, DeSciscio argues that there is an 
extraordinary and compelling circumstance following a change of law in our Circuit 
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following the Third Circuit’s decision in United States v. Nasir , 17 F.4th 459 (3d 
Cir. 2021).  Specifically, Defendant states that he would not have been convicted 
and sentenced of RICO conspiracy charges, either because inchoate offenses cannot 
serve as RICO predicates or because his guidelines range would  have been lower.   
 Because the Defendant has not exhausted his administrative remedies nor has 
he submitted proof that he has exhausted his administrative remedies before filing 
the instant motion , his motion is denied .  (See ECF Nos. 56 and 57).  For sake of 
completeness, this Court reviews Defendant’s claims for the existence of 
extraordinary and compelling circumstances to streamline future petitions. 
a. Administrative Remedies Exhaustion 
To the first point, Section 3582(c)(1)(A) provides that only “upon motion of 
the defendant after the defendant has fully exhausted all administrative rights to 
appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf 
or the lapse of 30 days from t he receipt of such a request by the warden of the 
defendant's facility,” may a court entertain a motion for compassionate release.  As 
courts in this District have previously determined, this exhaustion requirement “is 
strictly applied and is not susceptible to any judicially created exceptions.”  Section 
3582(c)(1)(A) provides that only “upon motion of the defendant after the defendant 
has fully exhausted all administrative rights to appeal a failure of the Bureau of 
Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the 
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receipt of such a request by the warden of the defendant's facility,” may a court 
entertain a motion for compassionate release. As this Court has previously 
determined, this exhaustion requirement is strictly applied and is not susceptible to 
any judicially created exceptions.   United States v. McNair , 481 F. Supp. 3d 362, 
366 (D.N.J. 2020).   
Defendant has provided no evidence that he exhausted all his administrative 
remedies.  According to the Government, BOP records show that the most recent 
request for a reduction in sentence was “submitted to the Warden on June 2021.”  
(ECF No. 61 at 5).  That request was the subject of one of Defendant’s previous 
motions and did not raise these grounds for relief.  Thus, because Defendant has not 
exhausted his administrative remedies, Defendant’s application must be denied. 
b. Extraordinary or Compelling Circumstances 
Notwithstanding the fact that Defendant has not exhausted his administrative 
remedies, the Court examines Defen dant’s other arguments to demonstrate why —
even if the administrative remedies were exhausted —Defendant would not be 
entitled to relief.  
As previously stated, Defendant raises three principal legal arguments that he 
argues amount to extraordinary and compelling circumstances meriting his release: 
(1) his “case should have been sentenced under the old law which allowed 
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defendants to go to the Parole Board,” and his being erroneously sentenced under 
the new law without the possibility of parole constitutes an extraordinary and 
compelling reason for a reduction in his sentence ; (2) that  the Third Circuit’s 
decision in United States v. Harris , 68 F.4th 140 (3d Cir. 2023 ) is relevant to his 
RICO convictions and presents an extraordinary and compelling circumstance; and 
(3) that there is an extraordinary and compelling circumstance  following a change 
of law in our Circuit following the Third Circuit’s decision in United States v. Nasir, 
17 F.4th 459 (3d Cir. 2021).  The Court addresses each in turn. 
i. Sentencing under the Sentencing Reform Act of 1987 
To Defendant’s first argument —that his case should have been prosecuted 
under the “old” law for Counts Three, Four and Count Five—this argument fails as 
a matter of law.  D uring the commission, investigatio n, and prosecution of 
DeSciscio’s crimes, Congress had amended federal law to abolish parole. 
Specifically, the Sentencing Reform Act of 1984 (P.L. No. 98-473, 98 Stat. 1987 ) 
abolished federal parole and created the United States Sentencing Commission.  The 
Reform Act went into effect for the sentencing of all crimes committed after 
November 1, 1987.   As is relevant to this petition, Counts Three  and Four were 
sentenced under the so-called “new law” of the Reform Act.  
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Looking at  Counts Three and Four —conspiracy to murder John and Gene 
Gotti—Defendant mistakenly argues that these Counts referred only conduct that 
occurred in September 1987.  (ECF No. 56 at 1).  To the contrary, these Counts  
charged conduct from September 1987 to the filing of the indictment and related to 
the conspiracy to murder John and Gene Gotti ; this included conduct as late as 
January 1988—well after November 1, 1987.  (See Presentence Report (“PSR”) at ¶ 
31).  What is more, the Court agrees with the Government; it is well-established that 
conspiracy and RICO “offenses are and were continuing offenses, such that no 
matter when they began, they were subject to the new sentencing law if they 
continued after November 1, 1987. ” (ECF No. 61 at 6 (citing United States  v. 
Moscony, 927 F.2d 742, 754 (3d Cir. 1991))).  As such, sentencing under the “new” 
law was appropriate. 
As to Count Five, the Court also agrees with the Government; Defendant’s 
argument that the Schiff’s murder was prosecuted under the “new” law is factually 
incorrect.  As the Judgment of C onviction clearly state s: “Under prior law , it is 
adjudged on Count 5 that defendant is sentenced to ten (10) years to run consecutive 
to other counts . . . .” (Judgment at 2) (emphasis added).   
Accordingly, this argument does not present an extraordinary and compelling 
circumstance. 
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ii. Legal Effect of  United States v. Harris, 68 F.4th 140 (3d Cir. 2023) 
Next, Defendant argues that the Third Circuit’s recent decision in United 
States v. Harris presents an extraordinary and compelling circumstance  because 
Harris concluded that first degree assault under Pennsylvania law was incorrectly 
determined by the District Court to qualify a s a predicate offense for the Armed 
Career Criminal Act.  (ECF No. 56 at 2).  This is not an extraordinary and compelling 
circumstance meriting relief for two principal reasons.  First, the claims identified in 
Harris are not controlling on the Court; the analysis of first-degree assault in 18 Pa. 
Stat. Ann. Section 2702(a)(1) is inapplicable to this matter.  Second, the Harris court 
dealt with a felony predicated under the Armed Career Criminal Act—a statute with 
no bearing on Defendant’s conviction.  As such, Harris has no bearing on the case 
before the Court.   Harris does not present an extraordinary and compelling 
circumstance meriting relief.  
iii. Legal Effect of United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) 
Finally, Defendant argues that under Nasir, he would not have been convicted 
and sentenced of RICO conspiracy charges because under Nasir, inchoate offenses 
cannot serve as RICO predicates .  In that vein, Defendant argues that Nasir would 
serve to lower his guidelines range.   
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This argument also fails for several reasons.  As a preliminary matter , the 
Third Circuit’s decision was limited to inchoate offenses with regards to controlled 
substance offenses.1  As such, this decision was restricted to the controlled substance 
realm.  Even if the Nasir decision were not limited to this realm, as the Third Circuit 
has previously stated, reliance on Nasir alone is insufficient to create a basis for 
compassionate release because non-retroactive changes in the statutory sentencing 
laws do not establish an extraordinary and compelling circumstance for release.  See 
United States v. Spriggs , No. 22 -3005, 2023 WL 1813498, at *2 (3d Cir. Feb. 8, 
2023).   
c. Section § 3553(a) Factors 
Given that the Court has not found that Defendant exhausted his 
administrative remedies and that extraordinary and compelling reasons are not 
present, the Court declines to review whether the sentencing factors under 18 U.S.C. 
§ 3553(a) weigh against modification.  The Court relies upon its previous decision 
which speaks on the same.  (ECF No. 14 at 13-14) 
 
1 The Third Circuit specifically stated:  
[W]e conclude that inchoate crimes are not included in the definition of 
“controlled substance offenses” given in section 4B1.2(b) of the 
sentencing guidelines. Therefore, sitting en banc, we overrule 
Hightower, and accordingly, will vacate Nasir's sentence a nd remand 
for resentencing without his being classified as a career offender. 
United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021). 
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For the reasons stated above, Defendant’s motion is denied.  An appropriate 
order follows. 
ORDER 
THIS MATTER having c ome before the Court on Defendant Richard 
DeSciscio’s motion for a sentence reduction  (ECF No. 56); and the Court having 
carefully reviewed and considered the submissions  of the parties, as well as the 
arguments and exhibits therein presented; for good cause shown; and for all of the 
foregoing reasons, 
IT IS on this 22nd day of December, 2023; 
ORDERED that Defendant’s motion for a sentence reduction, (ECF No. 56), 
is DENIED. 
 
     s/Peter G. Sheridan    
     PETER G. SHERIDAN, U.S.D.J.  
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